![]() |
RDG
online Restitution Discussion Group Archives |
||||||||||||
![]() |
![]() |
||||||||||||
|
In relation to
Lionel's request for comment on the following passage:
Air
Jamaica Ltd. v. Charlton [1999] 1 WLR 1399 (PC, Jamaica): pension
scheme surplus: at 1412BC per Lord Millett: "Like a constructive trust,
a resulting trust arises by operation of law, though unlike a constructive
trust it gives effect to intention. But it arises whether or not the
transferor intended to retain a beneficial interest - he almost always
does not - since it responds to the absence of any intention on his
part to pass a beneficial interest to the recipient."
My view is that Lord Millett's comments, although perhaps not very clearly
expressed, are not particularly surprising or controversial. At first
sight, as other members have argued, there does appear to be an unacceptable
element of fiction in his formulation. However, it seems to me that Lord
Millett had in mind two different "intentions" in the two sentences of
the quote above.
In the second sentence, where Lord Millett says that the transferor "almost
always does not" intend to retain a beneficial interest, he seems to be
referring to what might (loosely) be called the transferor's primary intention.
Resulting trusts frequently arise in situations where effect cannot be
given to a person's primary intention e.g. where a trust fails for lack
of certainty of objects or because it is contrary to public policy (or
where a pension fund is discontinued prematurely, as in the Air Jamaica
case). One then has to guess at the settlor's intention in the changed
circumstances: given that the original intention cannot be put into effect,
what would the settlor be likely to intend in the new situation? Would
she want to retain the beneficial interest under a resulting trust or
would she prefer e.g. the property to pass to the state as bona vacantia.
The resulting trust option represents the most plausible guess as to the
settlor's intention in the changed circumstances (and a rebuttable presumption
is, in my view, not to criticised as arbitrary or fictional if it represents
a sensible guess at a likely intention). In my view, it is in this sense
that the resulting trust in the Air Jamaica case can be said to be based
on the transferor's "intention" (as Lord Millett says in his first sentence
above). I see no objectionable resort to fiction here.
A quick perusal of the rest of the Air Jamaica case appears
to offer support for the above view. In discussing a clause of the Pension
scheme that appeared to indicate that the company could not have intended
to retain a share of the property in question, Lord Millett said:
"Consequently their Lordships think that clauses of this kind in a pension
scheme should generally be construed as forbidding the repayment of contributions
under the terms of the scheme, and not as a pre-emptive but misguided
attempt to rebut a resulting trust which would arise dehors the scheme.
The purpose of such clauses is to preclude any amendment that would allow
repayment to the Company. Their Lordships thus construe clause 4 of the
Trust Deed as invalidating the 1994 amendments, but not as preventing
the Company from retaining a beneficial interest by way of a resulting
trust in so much of the surplus as is attributable to its contributions."
This passage appears to be directed to showing that the company did not,
in fact, have an intention (as to what should happen if the person fund
were discontinued) which was inconsistent with the creation of a resulting
trust.
John Mee <== Previous message Back to index Next message ==> |
||||||||||||
![]() |
![]() |
» » » » » |
|
![]() |
|||||||||
![]() |